Laws of Parliament

Discussing the application and influence of the three apex control mechanism for society in Malaysia

Discussing the application and influence of the three apex control mechanism for society in Malaysia

Custom

Colonial Heritage

If you would understand anything, observe its beginning and its

development.

If you would understand anything, observe its beginning and its

development.- Aristotle- Aristotle

Laws of ParliamentLaws of Parliament

Malaysia practices Parliamentary Democracy with Constitutional Monarchy and His Royal Highness is the Paramount Ruler.

System brought into existence by: Federal Constitution

Three divisions of

power:

LegislativeLegislative

JudiciaryJudiciary

ExecutiveExecutive

Interpreting laws

Make Laws

Enforcing Laws

Parliament falls under: The legislative branch, i.e the

organization involved in making the law.

Before Malaysia became independent, there was no parliament in Malaysia though the British colonial government permitted the formation of legislative councils for Malaya, Sabah, and Sarawak

More on Laws of ParliamentMore on Laws of ParliamentThe representatives in Parliament:

Chosen by the people (HOR) and the King (Senate)

The representatives in Parliament:Chosen by the people (HOR) and the

King (Senate)

Parliament mainly discusses major lawsParliament mainly discusses major laws

Before the law is passed, it goes through rigorous debates and other procedures, some of which involves the YDPA

Before the law is passed, it goes through rigorous debates and other procedures, some of which involves the YDPA

Second reading for amendment to the Anti-Human Trafficking Act 2007 (HOR, 15th July 2010) for it to cover smuggling of migrants

Recent Debates

Second and Third reading for amendment to the Hire-Purchase Act 1967 (Senate, 3rd August 2010) for it to be strengthened, as there exist loopholes in the current Act

CustomCustom A practice followed by people of a particular group or region.

Law A common tradition or usage so long established that it has the force or validity of law.Law A common tradition or usage so long established that it has the force or validity of law.

Execution of custom is influenced by the environment, religion, inner morality, etc.

Custom, on its own, has no mechanism of avengement if violated. The furthest extent of ‘punishment’ for people who do not follow custom: condemnation or expressed dissatisfaction by the majority that does conform to it.

Custom, on its own, has no mechanism of avengement if violated. The furthest extent of ‘punishment’ for people who do not follow custom: condemnation or expressed dissatisfaction by the majority that does conform to it.

Customs, to a certain extent, are an important source of unwritten law. Customs are inherited from one generation to another generation.

Customs, to a certain extent, are an important source of unwritten law. Customs are inherited from one generation to another generation.

There is no customary law of general application in Malaysia

General notable distinct customs:General notable distinct customs:

Chinese and Hindus customs are governed by Chinese and Hindu Customary Law.

Natives in Sabah and Sarawak have their own customary law which relates to the land and family matters.

Custom, or adat, mainly concerns community interactions, family matters, distribution of inheritance, etc. It so very rarely touches on politics or economics.

Custom, or adat, mainly concerns community interactions, family matters, distribution of inheritance, etc. It so very rarely touches on politics or economics.

Colonial HeritageColonial Heritage

Only the British colonization brought significant impact to the development of law in Malaysia.

1511–1641

Throughout much of World War II (1941-1945)

18th and the 19th until the 20th century

the building and maintaining of colonies in one territory by people from another territory.

Effect of British Colonization on Law

Effect of British Colonization on Law

Malaysia adopts the Common-Law system

‘judge-made’ laws, not so much relying on statutes

The decision sets the precedent to be followed by later cases

Example:

The concept of risk in negligence, that it is a general and approved practice.The concept of risk in negligence, that it is a general and approved practice.

Case decided in 1953 in England: General Cleaning Contractors v Christmas

It was established principle was that even if an act is a general and common practice, liability will still be imposed if the act is dangerous and gives rise to a considerable degree of risk of injury

Principle applied in 1971 (Malaysian case): Aik Bee Sawmill v Mun Kum Chow

In Short…

• Laws of Parliament is the law passed by the legislative branch of our country that governs us day-to-day, that are enforced by sanctions. Everyone, even the King, is subjected to it.

• Customs are set of principles or order we tend to follow internally and governed by our own morality, different races have different customs. Often it is without the support of any sanctions.

• Colonial Heritage, in terms of law, left Malaysia with a whole mechanism of a legal system that is adapted to local use. It is the precedents (rulings) from British cases and the principles.

Case StudyCase Study • Inheritance

the practice of passing on property, titles, debts, and obligations upon the death of an individual.

the practice of passing on property, titles, debts, and obligations upon the death of an individual.

How does laws of Parliament, custom, and colonial heritage affects this case?

Case in point:Laga v Uging & Anor[1966] 1 MLJ 27

Case in point:Laga v Uging & Anor[1966] 1 MLJ 27

Laws of ParliamentLaws of Parliament

• “There is nothing to exempt Dayaks from the Administration of estates Ordinance” (The Laws of Sarawak 1948 Revised Edition)

• “There is nothing to exempt Dayaks from the Administration of estates Ordinance” (The Laws of Sarawak 1948 Revised Edition)

• Forest and Erosion Ordinance was referred to

• Forest and Erosion Ordinance was referred to

CustomCustom

A Dayak may not dispose of his own property, real or personal, during his lifetime.

There is consideration of Dayak custom and whether land under title by a Dayak may be disposed of him

The Tusun Tunggu (an attempt to codify the adats) was referred to.

Dayaks, by custom, cannot sell untitled land

Verbal contract in Dayak custom

Colonial HeritageColonial Heritage

• The land declaration was not given to the plaintiff because he did not dispute the latter’s title and did not allege fraud on the part of the first defendant

• The land declaration was not given to the plaintiff because he did not dispute the latter’s title and did not allege fraud on the part of the first defendant

• Case referred to:• Sat Anak Akum & Another v

Randong anak Charareng

• Case referred to:• Sat Anak Akum & Another v

Randong anak Charareng

Common law practice of presumption: Innocent until proven guiltyCommon law practice of presumption: Innocent until proven guilty

Common law practice: Doctrine of Judicial precedent

In summary..

• Laws of parliament and judicial precedents as well as common law principle are all joint in deciding the distribution of inheritance with enforceable sanctions. They have high value of authority.

• If all parties agree to customs in distributing inheritance, then no conflict will arise. If not, it will be brought up to the courts to decide. The courts will then apply the laws of parliament and common law principles.

• Laws of parliament and judicial precedents as well as common law principle are all joint in deciding the distribution of inheritance with enforceable sanctions. They have high value of authority.

• If all parties agree to customs in distributing inheritance, then no conflict will arise. If not, it will be brought up to the courts to decide. The courts will then apply the laws of parliament and common law principles.

All three has influence, but the stronger two (and most applied) are the law of parliament and colonial heritage

Conclusion

• Parliamentary Laws and colonial heritage heavily shapes the mechanism of law in Malaysia as it is the most applied and most influential in deciding cases.

• Custom only influence and applied to parties who willingly conform to it.